23:0405(57)MC - Petition for Amendment of Rules -- 1986 FLRAdec MC



[ v23 p405 ]
23:0405(57)MC
The decision of the Authority follows:


 23 FLRA No. 57
 
 PETITION FOR AMENDMENT OF RULES                 Case No 0-MC-10
 
                       DECISION ON PETITION FOR 
                          AMENDMENT OF RULES
 
    The Petition for Amendment of Rules was filed pursuant to 5 U.S.C.
 Section 553(e) and 5 U.S.C. Section 7134 and seeks an amendment to three
 provisions in the Authority's Rules and Regulations, specifically 5 CFR
 Sections 2423.5, 2424.5 and 2424.10.
 
           I.  Establishment of Deadlines for Deciding Scope of
 
                Bargaining Issues Under Section 7117(c)
 
    Petitioner proposes the following amendment to section 2424.10(a) of
 the Authority's Rules and Regulations to provide a deadline for issuance
 of Authority negotiability decisions:
 
          Except in cases in which hearings are held, decisions in cases
       arising under 5 U.S.C. Section 7117(c) shall be issued within 60
       days of the submission of the union's response to the agency's
       statement of position.
 
    In support of this proposed revision, the Petitioner relies on
 section 7117(c)(6) of the Federal Service Labor-Management Relations
 Statute (the Statute) which requires the Authority to expedite
 negotiability proceedings.
 
    The Authority rejects the proposal to establish a regulatory time
 limit for the issuance of negotiability decisions.  While the timely
 resolution of negotiability disputes is essential to the effective
 administration of the Federal labor-management relations program, we do
 not believe that the establishment of a 60-day time limit applicable to
 all negotiability appeals will assist in accomplishing that goal.
 Negotiability cases vary substantially.  The length of time it takes to
 decide a particular case depends upon such factors as the number and
 complexity of the proposals at issue;  the relationship of the disputed
 proposals to other cases;  the size and composition of our case docket;
 the need to give priority consideration to some cases;  and the
 availability of resources.  The assumption that all negotiability
 decisions could be issued within a fixed regulatory time limit would
 ignore the existence of all these factors and might well reduce the
 operational flexibility necessary to enable us to effectively carry out
 our other responsibilities under the Statute.
 
    The Authority has established goals which will significantly reduce
 the time taken to issue all of our decisions.  Our immediate goal is to
 decide all cases within six months of their receipt.  As of April 1,
 1986, there were 512 cases that would be six months old on September 30,
 1986;  as of August 31, 1986 that figure was reduced to 232.  We will
 continue our efforts until the goal is met.
 
           II.  Recognition of the Relationship Between Scope of
 
                Bargaining Disputes and Failure to Bargain Disputes.
 
    The petitioner proposes that sections 2423.5 and 2424.5 of the
 Authority's Rules and Regulations should be replaced by the following:
 
          (a) If a union files an unfair labor practice charge over an
       agency's failure to bargain over a matter, and the union has
       already filed an appeal of the agency's allegation that the duty
       to bargain does not extend to that matter, a complaint shall be
       issued and the agency required to answer, but further proceedings
       concerning the unfair labor practice charge will be suspended
       pending decision on the duty to bargain issue.
 
          (b) If during the investigation of a charge that an agency has
       failed to bargain in good faith, the agency alleges as a defense
       that the duty to bargain in good faith does not extend to the
       matter sought to be bargained, the agency will be instructed to
       submit its allegation in writing to the union.  If the union files
       a timely appeal of the allegation, a complaint on the unfair labor
       practice charge will be issued and an answer required, but further
       proceedings concerning the unfair labor practice charge will be
       suspended pending decision on the duty to bargain issue.
 
          (c) If at any time after issuance of the complaint the agency
       alleges as a defense that the duty to bargain in good faith does
       not extend to the matter sought to be bargained, the agency will
       be instructed to submit its allegation in writing to the union.
       If the union files a timely appeal of the allegation, further
       proceedings concerning the unfair labor practice charge will be
       suspended pending decision on the duty to bargain issue.
 
          (d) Upon issuance of the Authority's decision on the duty to
       bargain issue, the proceedings on the unfair labor practice case
       will be resumed in a manner consistent with that decision.
 
    The petitioner asserts that adoption of this proposal is necessary to
 allow for the pursuit of unfair labor practice remedies in situations
 where an agency simply refuses to negotiate over contract proposals on
 the basis that they are outside the duty to bargain.
 
    The Authority rejects this proposal for the following reasons.
 Sections 2423.5 and 2424.5 of the Authority's Rules and Regulations
 provide, in pertinent part, that where a labor organization files an
 unfair labor practice charge which involves a negotiability issue and
 also files a petition for review of the same negotiability issue, it is
 required to choose which procedure to pursue first.  Cases which involve
 only an agency's allegation that the duty to bargain in good faith does
 not extend to the matter proposed to be bargained, and which do not
 involve alleged unilateral changes in conditions of employment, must be
 processed exclusively under the negotiability procedures in part 2424 of
 the Authority's Rules and Regulations.  In our view, these regulations
 are consistent with the language of sections 7117 and 7118 of the
 Statute, which specify separate procedures for resolving negotiability
 and unfair labor practice cases, respectively.  They are also consistent
 with the legislative history of the Statute, which indicates that
 Congress considered but rejected a provision which would have required
 all negotiability disputes to be resolved in unfair labor practice
 proceedings.  /*/
 
    Unfair labor practice remedies are available in appropriate refusal
 to bargain situations, such as (1) where the refusal to negotiate is
 accompanied by unilateral changes in conditions of employment (Veterans
 Administration, Washington, D.C., 22 FLRA No. 69 (1986));  and (2) where
 an agency refuses to bargain over a proposal substantially identical to
 one which the Authority has previously determined to be negotiable under
 the Statute.  See Department of the Air Force, U.S. Air Force Academy, 6
 FLRA 548 (1981), affirmed sub nom. Department of the Air Force, United
 States Air Force Academy v. FLRA, 717 F.2d 1314 (10th Cir. 1983);
 Department of Treasury, Internal Revenue Service, Memphis Service
 Center, 15 FLRA 829 (1